CLD-255

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2744
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UNITED STATES OF AMERICA
v.
ANDRE KEYES, a/k/a DREY,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-03-cr-00487)
District Judge: Honorable John R. Padova
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and IOP 10.6
August 4, 2011
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Opinion filed: August 30, 2011)
_________
OPINION
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PER CURIAM
Andre Keyes, a prisoner at FCI-Fort Dix, in New Jersey, appeals from the District
Court orders dismissing his request for post-conviction relief and denying his motions for
reconsideration and appointment of counsel. Because the appeal does not present a
substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6.
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I
Keyes was convicted in the United States District Court for the Eastern District of
Pennsylvania of possession with intent to distribute crack cocaine and related charges,
including a weapons charge, for participating in a crack cocaine distribution ring. He was
sentenced to concurrent terms of 120 months imprisonment on the drug charges and a
consecutive 60-month term for possessing a firearm in furtherance of a drug trafficking
crime. Keyes appealed his conviction, and we affirmed. See United States v. Keyes, 214
F. Appx 145 (3d Cir. 2007).
Keyes then filed a timely motion to vacate his conviction under 28 U.S.C. 2255.
The District Court denied his motion, and we declined to issue a certificate of
appealability. See United States v. Keyes, C.A. No. 08-3778 (order entered Mar. 18,
2009). The United States Supreme Court denied Keyess petition for writ of certiorari in
October 2009.
In April 2011, Keyes filed in the District Court a petition for post-conviction
relief, in which he stated his intention to pursue, under 28 U.S.C. 2241, three claims:
(1) he is actually innocent of the 120-month drug sentence, in light of the Fair
Sentencing Act of 2010, which reduced the penalties for crack-related offenses; (2) his
sentence violates his right to equal protection under the Fifth and Fourteenth
Amendments to the Constitution; and (3) he is actually innocent of possessing a firearm
in furtherance of a drug trafficking offense.

The District Court dismissed Keyess

motion, reasoning that Keyes failed to demonstrate his entitlement to proceed under
2241.

Keyes then sought reconsideration and appointment of counsel, which the

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District Court denied. Keyes now appeals those decisions.

II
We have jurisdiction pursuant to 28 U.S.C. 1291, and we may summarily affirm
if Keyes does not raise a substantial question on appeal. See 3d Cir. LAR 27.4; 3d Cir.
IOP 10.6.
A federal prisoner challenging the validity of his conviction or sentence must
pursue collateral relief under 2255 in the district court that imposed his sentence. See
2255(a). [U]nder the explicit terms of 28 U.S.C. 2255, unless a 2255 motion
would be inadequate or ineffective, a habeas corpus petition under 2241 cannot be
entertained by a district court. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538
(3d Cir. 2002) (per curiam); see 2255(e). A 2255 motion is inadequate or ineffective
only where the petitioner demonstrates that some limitation of scope or procedure would
prevent a 2255 proceeding from affording him a full hearing and adjudication of his
wrongful detention claim. Cradle, 290 F.3d at 538. Section 2255 is not inadequate or
ineffective merely because the sentencing court does not grant relief, the one-year statute
of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping
requirements of the amended 2255. Id. at 539. Rather, the safety valve provided by
2255(e) is a narrow one that applies only in rare situations, such as when a prisoner has
had no prior opportunity to challenge his conviction for a crime later deemed not criminal
due to a change in the law. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
Keyes first argued that he should be permitted to proceed under 2241 because
the Fair Sentencing Act of 2010, which reduced the sentences applicable to crack-related
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offenses, rendered him actually innocent of the 120-month mandatory minimum

sentence imposed on him in 2004. However, Keyes has not shown that this claim
satisfies the narrow Dorsainvil exception because there is no merit to his argument: as
we held in United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010), the Fair
Sentencing Act has no retroactive effect. 1
Keyes next argued that his right to equal protection has been violated because he
was sentenced under the harsher penalties in place before the Fair Sentencing Act, while
similarly situated offenders, i.e., those who committed the same crimes involving the
same amount of crack cocaine after the Fair Sentencing Act was enacted, receive less
severe penalties. His argument lacks merit, and therefore fails to satisfy the Dorsainvil
exception, because it incorrectly views the two groups of offenders as similarly situated;
they are not. Moreover, assuming arguendo that an Equal Protection violation exists, it
would not establish Keyess actual innocence in any respect.
Finally, Keyes argued, based on an affidavit he submitted describing his account
of the facts leading to his firearms conviction, that he is actually innocent of that charge.
Keyes again fails to meet the Dorsainvil standard, as he does not allege any information
that was unavailable to him at the time he filed his original 2255 motion. Because
Keyes failed to demonstrate that 2255 was inadequate or ineffective, the District Court

In so holding, we make no comment on the arguably open question whether a litigant can
satisfy Dorsainvil by demonstrating actual innocence of a sentence.
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appropriately dismissed his 2241 petition. 2

We also agree with the District Court that Keyess motion for reconsideration
lacked merit. In that motion, Keyes argued that the District Court erroneously construed
his petition as arising under 2241. However, his argument is belied by the numerous
arguments in his petition asserting his ability to proceed under that statute. To the extent
that Keyes suggests an alternative basis for relief, we are aware of no other avenues
available to him. Petitions under 2241 notwithstanding, [m]otions pursuant to 28
U.S.C. 2255 are the presumptive means by which federal prisoners can challenge their
convictions or sentences . . . . Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002).

And Keyes has not shown either newly discovered evidence of his actual

innocence or a new, retroactively applicable rule of constitutional law entitling him to

relief, so as to permit him to file a second or successive 2255 motion. See 2255(h).
Likewise, the District Court did not abuse its discretion in denying Keyess motion
for appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993).
Accordingly, we will affirm.

Further, because Keyess petition could not be brought under 2241, we perceive no error
in the District Courts decision not to transfer Keyess petition to the district of his
confinement.
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